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Topic Review (Newest First)

05-01-2004 10:16 PM

flytyer

Just read an article on the front page of the Skagit Valley Herald (www.skagitvalleyherald.com) title "FEDS ASK FOR MORE TIME FOR SALMON PROPOSAL" that is on the issue this thread has been discussing.

"A federal agency that is rewriting a salmon recovery plan for the Pacific Northwest has asked for a six-month extension."

"A federal judge ordered NOPAA Fisheries to rewrite its recovery plan, known as a biological opinion, last May [2003], after ruling that the existing bluprint violates the Endangered Species Act."

"U.S. District Judge James Redden set a June 2 [2004] deadline for the new plan. The previous plan, adopted in late 2000 by the Clinton administration, remains in effect while the rewrite is completed."

"But in court papers filed this week, the fisheries agency, formally known as the NMFS, said it needs another six months to do the job. The agency said the comprehensive nature of the recovery plan, and the extensive work it has done with the affected state, as well as the Indian tribes and conservation groups in the region, make the delay unavoidable."

"Todd True and other conservationist say they would not abject to an extension of up to three months to allow the government to do a thorough job. But they say six months is too musch time."

""I think some extension is reasonable and fair to provide,' said Nicole Cordan, policy and legal director for the Save our Wild Salmon, another group involved in the case."

"'The judge has made it clear all along that he wants us to work more closely with the states and tribes on this, and we are happy to do that,' Brian Gorman [from NOAA Fisheries] said. 'It just means it is likely we will need an extension of time.'"

"The extension request comes as the bush administration considers a major policy shift of samon protection. A draft plan being considered by NOAA fisheries would add hatchery-bred salmon to any decision about protecting wild fish runs under the Endangered Species Act."

"Bob Lohn, the agency's [NOAA] regional administrator, said the POLICY CHNAGE WAS REQUIRED BY A RECENT FEDERAL APPEALS COURT RULING THAT FORCES OFFICIALS TO COUNT ALL FISH THAT ARE GENETICALLY RELATED [emphasis added by flytyer]."

As everyone can clearly see by this article, NOAA's new salmon policy that hatchery and wild fish of the same species are the same was forced to happen by Judge Hogan's decision. The other judge, James Redden, made the ruling on when NOAA had to have the salmon recovery plan changed to reflect Hogan's decision that wild and hatchery salmon are the same after the 9th Circuit Court of Appeals affirmed Judge Hogan's ruling and sent the case back to the Oregon Federal District Court for the Oregon Court to make a ruling as to the date NOAA was to have the new plan ready. And Judge Redden told NOAA that they had to include the treaty fishing tribes of the states effected, the states effected, conservation groups that were involved supporting NOAA's original salmon recovery plan (which said hatchery and wild fish were different-remember Judge Hogan ruled otherwise), timber interests, agriculture interests, and power generators in both the process of developing the new policy and the have their concerns addressed in the final policy.

Judge Reddden has required NOAA to provide him with a copy of the new salmon recovery plan by June 2, 2004 so that he can review it to see if it complies with the orders of Judge Hogan and the 9th Circuit Court of Appeals. In other words, NOAA must include in its salmon recovery plan hatchery and wild fish being treated having no difference.

Like I've said before in this thread, Judge Hogan, and appointed for life federal judge, is what has caused the change in the salmon recovery plan and the delisting of salmon when there are hatchery and wild fish in the same river system.

The change is being forced by Judge Hogan's ruling, period.

05-01-2004 09:31 PM

flytyer

JD,

It is not just that judges can interpret the law any why they like, they also create law with their rulings. This creation of law by judges is known as "Case Law", and other judges use it (these decisions made by other judges) to make decisions in similar cases. Also, lawyers use case law to present their case and make their argument to persuade the judge to make the decision they want in the case.

I don't know how many of you know this; but law school teaches their students how to argue a case effectively. They do not study the law. Instead, the prospective lawyers study peior decisions of judges (case law) and the arguments made by the attorneys that led to the decision made by the judge.

Therefore, judges do indeed make laws!! To think otherwise, is not accurate.

05-01-2004 02:40 AM

JDJones

wait just a cotton pickin' minute here

Placing the blame on elected politicians for bonehead decisions like this is just foolishness!

Remember if you don't like something vote the Rascals out!

What kind of double talk is this? You can't vote out an appointed bureaucrat. And in the case of federal judges, it is a life time appointment.

It is not the judges that make law but our elected officials

True but the judges can interpret the law any way they want.

It is only the special interests that demand accountability. The rest of us just wring our hands and do nothing.

I didn't want to have to get into this but,,,,special interest groups run on MONEY and some have members with a lot of it. Unfortunately, ,none of us do.

04-30-2004 11:08 PM

beau purvis

well ,I just had dinner and a few drinks with a lawyer friend.Been around a long time with some very big law firms.For whats one mans opinion, he said it is well known that Clinton appointed a bunch of real fruit cakes to the 9th circuit.Proof of that is that 67%,according to him, of their decisons are reversed .Lets hope he is correct!Beau

04-30-2004 10:47 PM

Smalma

Placing the blame on elected politicans for bonehead desisions like this is just foolishness!

If you must find a scape-goat just look in the mirror. It is our general apathy that allows such things to continue. It is only the special interests that demand accountability. The rest of us just wring our hands and do nothing.

Remember if you donb't like something vote the Rascals out!

It is not the judges that make law but our elected officials. Don't like something demand changes.

Tight lines
S malma

04-30-2004 08:39 PM

flytyer

Drake,

Any administration is powerless to change what a court decrees a federal agency must do or change. Just like priot administrations, the State of Washington, and various fishing and environmental groups were unable to do anything about Judge Bolt declaring and having affirmed by the 9th Circuit Court that the tribes in Washington State were entitled to 50% of the harvest on all river systems with salmon and steelhead runs in the state. No amount of hand-wringing, finger-pointing, or wishful thinking is going to change the Bolt decision, nor are they going to change the Hogan decision on hatchery and wild salmon being the same species.

The only place either can be changed is Congress. With Bolt, Congress would have to either overturn portions of the treaties Bolt relied upon, or outright abolish all American Indian Treaties.

With the Hogan decision, Congress would have to change the Endangered Species Act to make small DNA differences of the same species lawful for listing or not listing a species as threatened or endangered.

I think the possibility of either of these happening is about the same as the possiblity that in the next 5 minutes 25% of the earth's population is simply going to vanish without a trace. Congress is not going to abolish the Indian Treaties because it is far to volitile an issue; likewise, they are not going to change the Endangered Species Act to declare small DNA differences within the same species is sufficient to declare a species threatened or endangered.

04-30-2004 07:07 PM

Drake

Whoops...

Thanks... I'm having a tough day. Earlier I attributed a quote from Mae West to Eleanor Roosevelt...

04-30-2004 04:19 PM

Smolt

To Teddy Roosevelt the White House was a "bully pulpit". Who knows, to Bush "bloody pulpit" may be fitting. (I couldn't resist, and wanted to correct you before Flytyer did.)

04-30-2004 03:57 PM

Drake

Flytyer,

I stand corrected. Of course, the case would have never made it to the 9th Circuit without the government's appeal. As a casual observer of the process, I'm left wondering about the zeal with which said appeal was conducted. How zealous can a career administrator in any agency be when he knows full well that his appointed bosses in DC and the field are beholden to those with an ideological bent different than his own. The average gummint employee is nothing if not a master manager of his career.

My point, and I still believe it is correct, is that there is plenty of blame to go around. The legislature left the loop hole, the industrial interests and their handmaidens in the executive branch jumped through it and the judge held the safety net on the other side.

If, indeed, the office of president is a "bloody pulpit," then the preacher needs to deliver the right sermon. Otherwise the administrators know that they can get away with, and perhaps even be rewarded by, whatever means are deemed to justify the end. If such were not the case, we wouldn't be spending so much time fixing corporate financial reporting and the SEC's oversight function. And yes, that goes back to prior administrations as well. The tone, the atmosphere, the ideology aren't being set properly with regard to this issue and most others involving our natural resources. As others have pointed out, if they really wanted to do something about this, they'd find a way. But they won't becaue they don't want to do anything about it despite their "appeals" to the contrary.

04-30-2004 03:30 PM

Smolt

Flytyer,

I agree with you that a "solution" to the problem that appears to be raised by the decision would be to eliminate hatchery fish. I don't pretend to know whether it is the best solution, but it may be a solution.

BTW Congress revisits existing legislation all the time. The tax code may be the best example. But let's get beyond carping at each other about what the courts and Congress may and may not do.

CK

04-30-2004 03:10 PM

flytyer

Smolt,

In this instance, Congress has already passed the Environmental Protection Act way back in 1972 when Tricky Dick was in office. Judge Hogan used that federal law when rendering his decision that hatchery and wild salmon were the same, genetically identical species. Therefore, there is nothing for Congress to hold a hearing on, and I do not see Congress considering a bill that would replace or ammend the Endangered Species Act, which was designed and passed to prevent the extermination of species. The feds made their case for the biological differency between hatchery and wild salmon to Judge Hogan and they lost.

Let us not go down the road fishemen and environmentalist went down with Bolt's decision on tribal netting. It was counterproductive and had the end result of wasting a lot of time, energy, and resources only to have Bolt's decision continue to be affirmed (mostly through the appeals court's refusal to reconsider the case). Instead of hand-wringing, finger pointing (remember all fingers need to be pointed at Judge Hogan and the 9th Circuit Court of Appeals), and chest-beating, we need to work within the framework of the court ruling and use things such as the listing of dollies to prevent overharvest of wild fish.

The alternative to this is to eliminate hatcheries and only have wild salmon in our rivers because if you take the hatchery fish out of a river system and only rely on the greatly reduced wild fish for a salmon run, the fish can be said to be nothing other than threatened or endangered. This also means that no one will be able to fish with the result that there will be lawsuits filed on behalf of commercial fisherman, tribes, developers, timber companies, etc. to force the states and feds to put hatchery fish back in the system in order to prevent "extinction" of the species. And since the courts have already determined that hatchery and wild salmon are identical, they would win these lawsuits.

04-30-2004 02:50 PM

Smolt

Flytyer,

Congress holds hearings on issues. The issue here is the appropriate protection of endangered species. Congress is free to pass new legislation, within the bounds of the Constitution, that addresses that issue. New Constitutionally sound legislation trumps pre-existing court decisiions.

So, you are right, Congress doesn't hold hearings on court decisions, but that hasn't and shouldn't stop Congress from dealing with issues that "bad" court decisions have raised. Courts act as a check and balance on Congress, but Congress may also act as a check and balance on the courts.

CK

04-30-2004 02:36 PM

kjackson

Flytyer's got it nailed...

For those who feel Bush is the cause of the Hogan decision, you're wasting your energy. You can blame the current administration as much as you want, but you would be better served by looking at the Boldt Decision and seeing the aftermath of that on fishery management.

Then take a deep breath, and ask yourself how you can make the best out of the Hogan decision. Realize that this decision doesn't take away all ESA habitat protections as many of the watersheds still contain stock that is endangered-- dollies for example. Also, while the feds decree if a run is endangered or not, the states, in most cases, still make the rules on harvest and habitat.

What can you do, besides flapping your gums (sorry but that's what a lot of this is), to influence state decisions? That is a question that needs to be answered.

Leland-- In regard to that article you posted-- speaking as one who has to evaluate what I write professionally for balance and accuracy-- this story was obviously slanted. The writer is not a friend of Bush and was interested, in my opinion, in showing Bush in a bad light. Based on what I know to be facts, there are inaccuracies in what was written.

I'm still going for $.03 because of inflation,

Keith

04-30-2004 02:27 PM

flytyer

Smolt,

Congress does not hold hearings on court decisions.

04-30-2004 02:26 PM

flytyer

Leland,

Notice what the lawyer for the Pacific Legal Foundation, Russell C. Brooks said, "Upon hearing this news, I am cautiously optimistic that the government may be complying with the law (remember the law referred to is Judge Hogan's ruling that there is no difference between hatchery and wild fish) and ending its slippery salmon science."

The Pacific Legal Foundation is ready and waiting to file more lawsuits in federal courts to force NMFA/NOAA, other federal agencies, and the states to change their salmon policies, rules, and laws to reflect Judge Hogan's decision. The federal agencies are simply complying with Judge Hogan's (and the 9th Circuit Court of Appeals) ruling.

For the reporter to say the court's ruling was not appealed is disingenuous at best and an outright lie at worst, Judge Hogan's ruling was appealed by the administration's NOAA and other agencies to the 9th Circuit Court of Appeals. The reporter knows this (or should know this) and barely mentions the fact that Hogan's ruling was upheld by the appeals court. There is the possibility that an editor edited the info on the appeal out of the reporter's original article. At any rate, it is disingenuous for it to have been left out and an outright lie to say Hogan's decision was not appealed.

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